First country of asylum

Portugal

Country Report: First country of asylum Last updated: 30/11/20

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Portuguese Refugee Council Visit Website

The Asylum Act provides for a definition of “first country of asylum” that is in line with Article 35 of the recast Asylum Procedures Directive,[1] and that attempts a merger with the criteria listed in Article 38(1) of the Directive.[2] Without prejudice to challenges in clarity resulting from the merger, the current definition seems to exclude formal recognition of refugee status or sufficient protection in accordance to the Refugee Convention as stand-alone criteria to apply the concept as it also requires that (i) life and liberty are not threatened, (ii) the principle of non-refoulement in accordance with the Refugee Convention is respected, and that (iii) the prohibition of the right to freedom from torture and cruel, inhuman or degrading treatment is respected. The “first country of asylum” concept is included among the inadmissibility grounds enshrined in the Asylum Act.[3]

The number of inadmissibility decisions on first country of asylum grounds is generally very limited. According to SEF, in 2019 there were no inadmissibility decisions based on the concept of “first country of asylum”. Nevertheless, one such decision was adopted in 2019 according to information gathered by CPR.

In those limited cases, the analysis conducted by SEF into the conditions of the concept generally focused on the legal status of the applicant, failing to adequately assess security risks in the first country of asylum alleged by the applicant. CPR is aware of one noticeable exception where SEF conducted a thorough assessment of protection conditions in the first country of asylum (Cameroon) following a decision from TAC Lisbon that quashed the initial first instance inadmissibility decision.

According to the information available to CPR, case law regarding the interpretation of the concept is very limited but includes a ruling from a second-instance Administrative Court focusing on the definition of “sufficient protection”. According to the court’s interpretation of the provision enshrined in the Asylum Act, such protection should be interpreted to encompass the principle of nonrefoulement in accordance with the Refugee Convention but also refoulement where a civilian’s life or person is at risk by reason of indiscriminate violence in situations of armed conflict.[4]

However, as stressed by the TAC Lisbon in a ruling from November 2017, the formal recognition of refugee status is not per se sufficient to qualify a third country as a first country of asylum in the absence on a meaningful assessment of possible risks to the security of the applicant in that country.[5]

 


[1] Article 2(1)(z) Asylum Act.

[2] Indeed certain elements of the definition of the “safe third country” such as that contained in Article 38(1)(b) of the recast Asylum Procedures are not included.

[3]Article 19-A(1)(c) Asylum Act.

[4] TAC Lisbon, Decision 1791/15.0BESLB, 29 September 2015, unpublished; TCA South, Decision 12873/16, 11 February 2016, available at: http://bit.ly/2zUrEVt on Brazil as a first country of asylum for a Syrian asylum seeker.

[5]TAC Lisbon, Decision 2163/17.7BESLB, 30 November 2017, unpublished. Another TACL judgement from 2019, considered that episodes of robbery in the country of asylum were “personal circumstances” that did not amount to “a situation of indiscriminate violence”. TAC Lisbon, Decision 271/19.9BELSB, 13 September 2019, unpublished.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation